BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 2061| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ CONSENT Bill No: SB 2061 Author: Morrow (R) Amended: 4/29/02 Vote: 21 SENATE JUDICIARY COMMITTEE : 7-0, 5/7/02 AYES: Escutia, Ackerman, Haynes, Kuehl, O'Connell, Peace, Sher SUBJECT : Privilege: electronic communications SOURCE : California Law Revision Commission DIGEST : This bill provides that (1) a privileged communication does not lose its privileged status simply because it is transmitted electronically, and (2) the statutory presumption of confidentiality and statutory waiver requirements apply to newly created privileges. ANALYSIS : Existing law provides that a lawyer-client communication is not deemed lacking in confidentiality solely because it was transmitted by facsimile, cellular telephone, or other electronic means. This bill would delete this provision, and instead would provide that a communication between parties to any privileged relationship does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the CONTINUED SB 2061 Page 2 communication. This bill would define "electronic" as having the meaning provided in Section 1633.2 of the Civil Code (which is "relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities"). Existing law provides that communications made in the context of specified relationships (husband-wife, lawyer-client, physician-patient, clergy member-penitent, sexual assault victim-counselor) are privileged, entitling the holder of the privilege to refuse to disclose, and to prevent another from disclosing, the communication. Existing law further provides that the privilege is waived if the holder of the privilege, without coercion, has disclosed or consented to the disclosure of all or a significant part of the communication at issue, or fails to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim it. Existing law further provides that the privilege is not waived when the disclosure is reasonably necessary for the accomplishment of the purpose for which the physician, psychotherapist, lawyer, or sexual assault counselor was consulted. Existing law recently has extended the right to claim a privilege against disclosure to communications between domestic violence victims and counselors. This bill would add the domestic violence victim-counselor privilege to those listed in Section 912, governing waiver of the privilege. Existing law provides that whenever a privilege is claimed on the ground that the communication at issue was made in confidence in the course of the husband-wife, lawyer-client, physician-patient, psychotherapist-patient, or clergyman-penitent relationship, the communication is presumed to be confidential and the opponent of the claim of privilege has the burden of proof to establish that communication was not confidential. SB 2061 Page 3 This bill would provide that the presumption of confidentiality also extends to communications claimed under the sexual assault victim-counselor and domestic violence victim-counselor relationship. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 5/9/02) California Law Revision Commission (source) ARGUMENTS IN SUPPORT : Current law addresses the electronic transmission of privileged communications only in the context of the lawyer-client relationship. Section 952 of the Evidence Code provides that a lawyer-client communication "is not deemed lacking in confidentiality solely because the communication is transmitted by facsimile, cellular telephone, or other electronic means between the client and his or her lawyer." The sponsor notes that the narrow focus of this provision may be read to deny the confidentiality of other privileged communications made by electronic means. Further, the provision's reference to specified technologies is overly specific, easily outdated, and makes no reference to the fact that electronic storage mechanisms may grant storage providers with access to electronic communications, threatening their privileged character. To address this problem, this bill would delete the referenced provision of Section 952 and instead provide that no privileged communication shall lose its privileged character solely because it is communicated by "electronic means" (using the Civil Code's broad and flexible definition of "electronic"), or because persons involved in the delivery or storage of the communication may have access to the communication. The sponsor's review of the Evidence Code sections relating to privileged communications also revealed that some provisions had not been updated to reflect the most recently created privileges between sexual assault and SB 2061 Page 4 domestic violence victims and their counselors. This bill would update those sections to include these newly created privileges. RJG:jk 5/9/02 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****